Complying with Insanity

I was part of a group of volunteers who advocated for contact lens prescribers during the Federal Trade Commission’s (FTC’s) statutorily mandated review of the Contact Lens Rule (CLR). I’ve been involved on behalf of prescribers and have basically lived this from the beginning almost through to the end. To say that I came away with a high opinion of the motives and competence of the FTC staff would be less than genuine.

When it comes to contact lens prescribers—especially optometrists—the FTC in general, and certain FTC staff members in particular, seem at least to me to believe that we are corrupt and irredeemable. It seems that some FTC staff members have never gotten over the fact that prescribers before 2003, when there was no statutory requirement to do so, generally did not release contact lens prescriptions (FTC, 2016).

It has not helped that at least one former member of the FTC team that was charged with monitoring this issue has found gainful employment with one of the various online-only contact lens retailers (Levine, 2019), which have profit motives to immiserate contact lens prescribers. It also hasn’t helped that the former general counsel for 1-800 Contacts is now a senator from Utah (Canham, 2010).

Even in the face of evidence that the Fairness to Contact Lens Consumers Act of 2003 (FCLCA) and the CLR that flowed from it have significantly improved market competition and that the number of complaints regarding contact lens prescriptions has been significantly less than 0.1% of the lens prescriptions offered during the last 16 years, the FTC has soldiered on to affect its solution in search of a problem (FTC, 2016; Pesin, 2019).

Even over Congress’ objections in appropriation language, and during a nearly unprecedented pandemic and its impact on our practices, the FTC decided that the time was ripe for new, unnecessary, and burdensome regulations on prescribers, even though alternatives, such as the poster requirement in California, have been shown to work (FTC, 2019). Further, the FTC refused to extend the run-up period to allow electronic health record (EHR) vendors to catch up with the CLR; however, Congress delayed the implementation of this burden until April 1, 2021 to allow providers and vendors to comply.

Complying with the amended CLR requires that each prescriber provide a prescription when the “fitting” is completed and that a signed acknowledgement is archived for a minimum of three years. There are some minimal exceptions to this requirement, and there are avenues for obtaining this acknowledgment electronically; but, until the vendors create these pathways, we are mainly limited to paper and email.

My advice is to read the Act and the Rule yourself. The Fairness to Contact Lens Consumers Act (“FCLCA” or “Act”) [15 US Code (USC) § § 7601–7610] can be found at https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title15-chapter102&edition=prelim .

The 2020 FTC Final Rule for Implementing Amendments to the CLR (85 CFR Part 315 pp. 50668-50717 & 16 USC, Chapter 1, Subchapter C, Part §315, et seq.) can be found at www.govinfo.gov/content/pkg/FR-2020-08-17/pdf/2020-14206.pdf .

The exception for charging for specialty contact lenses can be found in the Federal Register at www.ftc.gov/sites/default/files/documents/federal_register_notices/contact-lens-rules-16-cfr-parts-315-and-456/040702contactlensrule.pdf (down the right-hand column).

This regulatory overreach has resulted in proposed legislation, spearheaded by the American Optometric Association (AOA), to reverse this regulation and to fix the problems with the FCLCA and the CLR that were neglected: (116) S. 4613 by Sens. John Boozman (R-AK), Roger Wicker (R-MS), Rand Paul (R-KY), and Jim Inhofe (R-OK), which should have your and your senators’ full-throated support. In the meantime, the AOA has a guide to help you comply at www.aoa.org/practice/regulatory-and-coding/fclca .

For references, please visit www.clspectrum.com/references and click on document #305.

—Clarke D. Newman, OD
Plaza Vision Center, Dallas